Michael A. Huff v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 15 2020, 8:21 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kay A. Beehler Curtis T. Hill, Jr. Terre Haute, Indiana Attorney General of Indiana

Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael A. Huff, April 15, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2028 v. Appeal from the Pulaski Superior Court State of Indiana, The Honorable Crystal A. Kocher, Appellee-Plaintiff. Judge Trial Court Cause No. 66D01-1901-F5-1

Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020 Page 1 of 16 [1] Michael A. Huff appeals his conviction for possessing material capable of

causing bodily injury by an inmate as a level 5 felony and claims the trial court

abused its discretion in admitting evidence and the evidence is insufficient to

sustain his conviction. We affirm.

Facts and Procedural History [2] In January 2019, Huff was an inmate in the Pulaski County Jail. On January

14 or 15, 2019, Pulaski County Sheriff’s Sergeant of Corrections Christopher

McAninch conducted a C.A.B. hearing, which is “basically just a committee

hearing board for disciplinary,” with Huff in a cell for attorney visitation.

Transcript Volume II at 141. Sergeant McAninch wore a body camera during

the hearing in order to record Huff’s “testimony and everything else for [the]

C.A.B. hearing.” Id. at 144. [3] After concluding the hearing, Sergeant McAninch called the pod control officer

to unlock the door. The locking mechanism for the door slid open, and Huff

proceeded to open the door quickly and then closed the door quickly in front of

Sergeant McAninch, locking him inside the visitation room. [4] Huff moved down the hallway past the dispatch center. Sergeant McAninch

tried to radio to unlock the door and observed an officer hurry to the control

panel to unlock the door. He walked out of the room and yelled Huff’s name.

Huff stopped, hesitated for a second, and then started walking towards him.

Sergeant McAninch placed Huff into a holding cell, and Huff kicked the door

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after being placed inside. Huff “started to attempt to tear his mat apart” and

“stuff things in the toilet.” Id. at 148. [5] Sergeant McAninch went to Huff’s old cell and noticed his sleeping mat was

“very heavy.” Id. at 149. After a metal detector alerted on the mat, Sergeant

McAninch noticed the mat was hand sewn with white string material, cut open

the mat, and discovered what looked like the blackened end of a paperclip. The

officers decided to use a metal detector on the remainder of Huff’s belongings.

Sergeant McAninch discovered an envelope that was “sealed pretty tight” with

the name Braden Huff on it and felt a stiff object in the envelope that would not

bend as easily as paper. Id. at 152. He opened the envelope and discovered

handwritten letters dated November 2018 from a female inmate located in the

facility, a piece of toilet paper, and a razor blade. Sergeant McAninch

completed a contraband confiscation form and reviewed the form with Huff. [6] On January 17, 2019, the State charged Huff with possessing material capable

of causing bodily injury by an inmate as a level 5 felony. Huff waived his right

to counsel. At the jury trial, when asked how he was acquainted with Huff,

Sergeant McAninch answered without objection: “[T]hrough several incidences

inside the jail . . . . From when I first started here, um, several incidences in

which I was personally involved in, um, through physical incidences with him,

um, dealing with his C.A.B. hearings from other staff in which he has had

disciplinary problems with.” Id. at 140. Sergeant McAninch also testified

without objection: “At the time, he was actually serving a disciplinary sanction

in our disciplinary block.” Id. at 143.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020 Page 3 of 16 [7] During Sergeant McAninch’s testimony, the prosecutor asked to display the

first video from the bodycam. Huff objected and asserted the video was not

relevant to the facts of the charge. The court overruled the objection, found that

“it is relevant based on the fact that it is foundation for the offense that

occurred,” and marked the disc containing the bodycam footage as State’s

Exhibit 1. Id. at 146. The first video consisted of a seventy-three second clip

showing the end of the C.A.B. hearing in which Huff exited the room, closed

the door, walked away from Sergeant McAninch, and stated he was going back

to the block in a reasonable manner. The video includes an abrupt sound after

Huff was placed in a holding cell and a statement by Sergeant McAninch telling

him to quit hitting the door. [8] The prosecutor later asked to publish the second video showing the search of

the envelope. When the court asked Huff if he had any objection to the

publication of the second video, Huff answered in the negative. The court

published the second video on State’s Exhibit 1 to the jury. This 125-second

video showed the wanding of the envelope by a metal detector and Sergeant

McAninch feeling and opening the envelope. [9] Sergeant McAninch testified that possessing razors constitutes a “very high

security risk, as well as a safety concern for both inmates and staff.” Id. at 157.

When asked the reason, he answered:

There is [sic] multiple concerns when it comes into it, whether it be dangerous because it could be easily affixed to a handle, whether you take a toothbrush, get it hot enough to where the

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plastic becomes moldy, it can be affixed in there. It can be attached to pencils, and the blade is, now has a longer handle on it. It could be used more as a slashing tool, um, as well as some inmates could potentially use it for a suicide attempt.

Id. at 158. [10] Without objection, the court admitted a third video on State’s Exhibit 1

containing the video of the review of the contraband confiscation form. In the

five-minute video, Sergeant McAninch reviewed the form with Huff and

indicated he found a paperclip in the sleeping mat and a razor blade in an

envelope. Huff asked about his pillow, and Sergeant McAninch indicated it

was destroyed because it was handsewn on the top and was alerting on the

metal detector and stated, “I already found a paperclip in the mat and then I’m

finding razorblades in the other stuff.” State’s Exhibit 1. Huff stated: “There

shouldn’t have been no razorblades in no other stuff.” Id. Huff also stated that

the envelope had been sealed for months. The video revealed Huff stating there

was no reason to take the mail and the envelope and Sergeant McAninch

stating it was all seized for evidence and this was going to be an ongoing

investigation. [11] On cross-examination, Huff asked if there had ever been a report of him

intimidating someone with a razor blade, and Sergeant McAninch answered

that he believed so and stated “there was a jury trial with intimidation in which

it was actually mentioned to the jail commander about causing harm to him of

cutting something up.” Transcript Volume II at 167. When later asked by Huff

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if he had ever intimidated somebody with a razor blade threatening to cut them

or harm them, Sergeant McAninch answered: “Not with a razorblade, but

finding them in the cell, and the intimidation of harming staff or anything like

that, it’s, it’s not going to be a, a bridge that I want to cross.” Id. at 168. [12] On redirect examination, the following exchange occurred without objection:

Q You said that uh, you were asked about whether or not, in addition to the intimidation question, that was asked repeatedly, there was, was [Huff] ever found with a razorblade, and you started to answer that in the affirmative. What were you talking about?

A As far as being found with a razorblade?

Q Uh huh.

A Multiple times.

Id. at 170. On recross examination by Huff, the following exchange occurred:

Q So you said the Defendant has been found multiple times in possession of a razorblade, and you have never heard of him threatening anyone or using it to harm anyone with it?

A No.

Q On these multiple times he has been found in possession of a razorblade,

A Yes.

Q Yeah, none of these times there has ever been any reports of him harming anyone with a razorblade or threatening anyone with a razorblade?

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A Because the officers would discover them in time.

Id. at 170-171. [13] Without objection, Pulaski County Sheriff’s Corrections Officer Isaiah Hilt

testified Huff kicked the door after being placed inside the holding cell. The

court also admitted photos of the razor blade found in the envelope. [14] Corey Scott McKinney, the investigations supervisor assigned to the Westville

Correctional Facility, testified that he received specialized training concerning

inmates and the potential use of weapons and developed an expertise in the

area of weapons used by inmates. He testified that inmates use a razor blade

for anything from “a tool for like arts and crafts, things to send out to their

families, to cutting tools for, for weapons.” Id. at 205. When asked how

inmates modify a disposable razor so it can be used as a weapon, McKinney

answered that “the razors that our facility use have a plastic safety shroud

around them that is not meant to be disassembled, so it has to physically by, the

plastic has to physically be broken off in order to gain access to the metal strip

of razor inside of it” and that “[t]hey are referred to commonly as like a safety

razor.” Id. [15] He indicated the blades are dangers to others for “any number of reasons”

including by coming into contact with staff during the search of an offender’s

property. Id. at 206. He stated that the Department of Correction has

restrictions on the use of razors because they can be used as a dangerous

instrumentality and are classified as dangerous weapons. He testified that a

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great number of cases he had investigated or supervised involved razor blades

and that injuries involved slicing injuries, cutting major veins and arteries,

serious injury to the limbs, permanent disfigurement, or death. When asked to

review the photos of the razor blade found in this case and whether it could

cause bodily injury, he answered, “Yes. Absolutely.” Id. at 212. He testified

he had seen cases where “they are used as they are in that, in that photo, where

no extra preparation has been done, other than removing it from the plastic

shroud.” Id. at 213. The following exchange then occurred:

Q So, the mere fact of having a razor or part of a razor as depicted in those photos, would be classified by the Department of Corrections as a dangerous instrumentality. Is that correct?

A As soon as it is modified from its intended purpose, which is a shaving razor for the Department of Correction. As soon as it is modified in its, and it’s placed in a manner like what the photos are there, they are dangerous weapons, yes.

Id. He also indicated he did not conduct any portion of the investigation in this

particular case and was present in court only in capacity as an expert witness on

razor weapons in prisons. [16] After the State rested, Huff testified that he was a little upset with the outcome

of the C.A.B. hearing and walked out “letting the door shut behind me out of

spite, because I was upset.” Id. at 222. He testified that Sergeant McAninch

placed him in a holding cell and gave him new property to hold him over until

his property was searched. He stated the officers brought him out sometime

later to read him a confiscation sheet and advised him they found a razor in an

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envelope addressed to his father, Brandon Huff. He testified he did not

remember ever putting a razor in the envelope. He stated that, while the letters

were dated from November, he could not send the envelope to his father until

he received the address of his father’s new house. He stated it was common for

inmates to have razor blades and that they are used for cutting hair and

pictures, arts and crafts, and sharpening pencils. [17] On cross-examination, Huff acknowledged he had multiple convictions of theft.

He also indicated that he let the door slam to lock Sergeant McAninch in the

room. He testified that a broken razor from a shaving kit could be used to cut

pictures and sharpen pencils, and when asked if razor blades are passed out for

those purposes, he answered in the negative. He also indicated that he pops

razors open to remove the blades. The jury found Huff guilty as charged, and

the court sentenced him to sixty months incarceration.

Discussion

I. [18] The first issue is whether the trial court abused its discretion by admitting

certain evidence. Huff challenges the admission of the video evidence as well

as the testimony of Sergeant McAninch and McKinney. He mentions Ind.

Evidence Rules 401, 402, 403, and 404, and argues that “[m]uch of the evidence

presented at the trial in this matter was not relevant and therefore not

admissible.” Appellant’s Brief at 7. He asserts that State’s Exhibit 1 was

prejudicial to his right to a fair trial because the video clip in which Sergeant

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McAninch reviewed the confiscation form contained allegations regarding

other jail infractions and refers to an “ongoing investigation.” Id. at 9. He

contends the first video clip played for the jury referred to a disciplinary hearing

and a sentence of “30 days” after which the officer accused Huff of “not going

back to [his cellblock] in a reasonable manner.” Id. He argues the segment

involving the search of the envelope may arguably be relevant, but its probable

effect on the jury pales in comparison to the rest of the video evidence. 1 Id. He

also points to the testimony of Sergeant McAninch that he “kicked the door” of

a holding cell and testimony regarding uncharged allegations that he had been

in possession of razor blades on other occasions. Id. at 10 (quoting Transcript

Volume II at 175). He asserts that he objected to the admission of the video

evidence on the proper grounds that it was irrelevant, prejudicial, and confusing

and that his failure to object to specific additional testimony was not fatal to his

claim because it constituted fundamental error. [19] The trial court has broad discretion to rule on the admissibility of evidence.

Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). A trial court’s ruling on the

1 Huff contends State’s Exhibit 1 contains five separate segments, four of which are irrelevant. He also asserts without citation to the transcript that “[t]he segments [of State’s Exhibit 1] titled ‘Altered Mattress’ and ‘Mat With Paperclip’ depicts [sic] officers discussing a mattress containing ‘other stuff’ and the alert of a metal detector on what officers identified as a piece of paperclip embedded in the interior padding of a mattress.” Appellant’s Brief at 9. As pointed out by the State, State’s Exhibit 1 is a DVD containing five video clips. The State asserts the titles were not relayed to the jury, the DVD was not sent to the jury during its deliberations, and the three clips played for the jury included the clips titled “Huff door slam and kick,” “metal detector and discovery of razor,” and “Huff statement about razor.” Appellee’s Brief at 10 n.4. Based upon the transcript, it does not appear that the clips titled “altered mattress” or “Mat with paperclip” were played for the jury.

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admission of evidence is generally accorded a great deal of deference on appeal.

Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015), reh’g denied. We will not reverse

an error in the admission of evidence if the error was harmless. Turner v. State,

953 N.E.2d 1039, 1058 (Ind. 2011). In determining the effect of the evidentiary

ruling on a defendant’s substantial rights, we look to the probable effect on the

fact finder. Id. at 1059. An improper admission is harmless if the conviction is

supported by substantial independent evidence of guilt satisfying the reviewing

court that there is no substantial likelihood the challenged evidence contributed

to the conviction. Id. [20] Failure to timely object to the erroneous admission of evidence at trial will

procedurally foreclose the raising of such error on appeal unless the admission

constitutes fundamental error. Stephenson v. State, 29 N.E.3d 111, 118 (Ind.

2015). The fundamental error exception to the contemporaneous objection

requirement is “extremely narrow, and applies only when the error constitutes a

blatant violation of basic principles, the harm or potential for harm is

substantial, and the resulting error denies the defendant fundamental due

process.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quoting Mathews v.

State, 849 N.E.2d 578, 587 (Ind. 2006)), reh’g denied. To be considered

fundamental, the claimed error must make a fair trial impossible. Id. (citing

Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009), reh’g denied). Thus, this

exception is available only in “egregious circumstances.” Id. (citing Brown v.

State, 799 N.E.2d 1064, 1068 (Ind. 2003)).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020 Page 11 of 16 [21] Ind. Evidence Rule 401 provides that evidence is relevant if it has any tendency

to make a fact more or less probable than it would be without the evidence and

the fact is of consequence in determining the action. Ind. Evidence Rule 402

provides in part that irrelevant evidence is not admissible. Ind. Evidence Rule

403 provides that the court may exclude relevant evidence if its probative value

is substantially outweighed by a danger of unfair prejudice, confusing the issues,

misleading the jury, undue delay, or needlessly presenting cumulative evidence.

Ind. Evidence Rule 404(b) provides that evidence of a crime, wrong, or other

act is not admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character. Rule

404(b)(2) provides that “[t]his evidence may be admissible for another purpose,

such as proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident.” [22] Huff did not object to the playing of the second and third video clips and does

not point to any objection to McKinney’s testimony. To the extent he cites

Rule 404(b) on appeal, his objection to the first video clip played to the jury was

based on relevance and not Ind. Evidence Rule 404(b). Accordingly, these

arguments are waived. See Halliburton v. State, 1 N.E.3d 670, 683 (Ind. 2013)

(observing that the law is well settled that a defendant may not argue one

ground for objection at trial and then raise new grounds on appeal, the

defendant made no claim at trial that evidence of the burglary did not fit any of

the 404(b) exceptions, nor did he contend at trial that evidence of the burglary

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was bad character evidence prohibited by Rule 404(b), and holding that the

defendant waived the claim of error for appellate review). [23] To the extent Huff points to the first video played for the jury showing the end

of the C.A.B. hearing, we note the video does not reveal what offense Huff

committed and showed Sergeant McAninch stating only that the “thirty days

will stand.” State’s Exhibit 1. To the extent Huff points to the first video clip in

which a loud sound can be heard after he was placed in a holding cell, the

record reveals that Officer Hilt testified, without objection, that Huff kicked the

door after being placed inside the holding cell. Further, Huff testified he let the

door slam to lock Sergeant McAninch in the room because he was upset with

the outcome of the C.A.B. hearing, and he walked out “letting the door shut

behind me out of spite, because I was upset.” Transcript Volume II at 222.

With respect to the reference to an ongoing investigation mentioned in the third

video clip played for the jury, Huff does not develop an argument that the

ongoing investigation related to an offense other than the conviction from

which he appeals. As for his contention that certain “testimony regarding

uncharged allegations that [he] has been in possession of razor blades on other

occasions was admitted,” he does not cite to the record. Appellant’s Brief at 10.

Further, Sergeant McAninch testified on cross-examination and re-cross-

examination by Huff regarding razor blades found in his possession. We

cannot say that the trial court abused its discretion or committed fundamental

error.

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II. [24] The next issue is whether the evidence is sufficient to sustain Huff’s conviction.

Huff does not assert that he did not possess the razor blade. Rather, he argues

that the condition of the metal item found was likely sealed in an envelope for

months and had not been altered or affixed to any object which could have

rendered it a ready weapon. [25] When reviewing claims of insufficiency of the evidence, we do not reweigh the

evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,

817 (Ind. 1995), reh’g denied. We look to the evidence and the reasonable

inferences therefrom that support the verdict. Id. The conviction will be

affirmed if there exists evidence of probative value from which a reasonable jury

could find the defendant guilty beyond a reasonable doubt. Id. [26] Ind. Code § 35-44.1-3-7 provides:

A person who knowingly or intentionally while incarcerated in a penal facility possesses a device, equipment, a chemical substance, or other material that:

(1) is used; or

(2) is intended to be used;

in a manner that is readily capable of causing bodily injury commits a Level 5 felony.

[27] In Abney v. State, 822 N.E.2d 260, 264 (Ind. Ct. App. 2005), trans. denied, the

court interpreted a former version of the statute, Ind. Code § 35-44-3-9.5, which

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similarly provided: “A person who knowingly or intentionally while

incarcerated in a penal facility possesses a device, . . . that: (1) is used; or (2)

intended to be used; in a manner that is readily capable of causing bodily injury

commits a Class C felony.” In addressing the defendant’s assertion that the

State failed to prove beyond a reasonable doubt that the device was used or

intended to be used in a manner readily capable of causing bodily injury, the

Court held:

We agree with Abney that the phrase “intended to be used” is part of the relative clause, modifying the antecedents “in a manner that is readily capable of causing bodily injury” and is not indicative of his level of culpability. See Hevenor v. State, 784 N.E.2d 937, 941 (Ind. Ct. App. 2003). Rather, the culpability level for I.C. § 35-44-3-9.5 is clearly defined in the opening sentence as “a person who knowingly or intentionally . . . possesses.”

Abney, 822 N.E.2d at 265. [28] The record reveals Sergeant McAninch discovered an envelope that was “sealed

pretty tight” with the name of Huff’s father on it. Transcript Volume II at 152.

The envelope contained letters from a female inmate, a piece of toilet paper,

and a razor blade. Sergeant McAninch testified that inmates possessing razors

constitutes a “very high security risk, as well as a safety concern for both

inmates and staff.” Id. at 157. McKinney testified that the blades are dangers

to others for “any number of reasons” including by coming into contact with

staff during the search of an offender’s property. Id. at 206. When asked to

review the photos of the razor blade found in this case and whether it could

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cause bodily injury, he answered, “Yes. Absolutely.” Id. at 212. He also

testified: “As soon as it is modified in its, and it’s placed in a manner like what

the photos are there, they are dangerous weapons, yes.” Id. at 213. Huff

indicated he popped the razors open to remove the blades. [29] Based upon the record, we conclude that the State presented evidence of

probative value from which the jury could have found Huff guilty beyond a

reasonable doubt of possessing material capable of causing bodily injury by an

inmate as a level 5 felony. See Abney, 822 N.E.2d at 265 (concluding that the

State presented sufficient evidence to support Abney’s conviction and observing

that the jail commander described a device as a hardened piece of steel

sharpened to a point, elaborated on its usage, and stated it was easily capable of

causing bodily injury to guards, other inmates, and the public in general); see

also Phillips v. State, 875 N.E.2d 480, 482 (Ind. Ct. App. 2007) (citing Abney and

holding that “‘intended to be used’ describes the device, not the intent required

for a conviction”), trans. denied. [30] For the foregoing reasons, we affirm Huff’s convictions. [31] Affirmed.

Najam, J., and Kirsch, J., concur.

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